Content-Type: text/html 93-479r.v7.html

CADDNAR


[CITE: JH&L Coal Company d/b/a Miller Mining v. Department of Nat. Res., 7 CADDNAR 28)]

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Cause #: 93-479R
Caption: JH&L Coal Company d/b/a Miller Mining v. Department of Nat. Res.
Administrative Law Judge: Teeguarden
Attorneys: Bucci; Wilcox
Date: April 22, 1994

ORDER

Part 1 of Notice of Violation N30923-S-143 is hereby vacated.

FINDINGS OF FACT

1. The Indiana Department of Natural Resources ("DNR") is an agency within the meaning of IC 4-21.5.

2. The DNR is the state agency charged with the responsibility of regulating surface coal mining operations.

3. IC 4-21.5, IC 13-4.1, and 310 IAC 12 apply to these proceedings.

4. At all times relevant to these proceedings, JH & L Coal Co., d/b/a Miller Mining ("JH & L"), held surface coal mine permit S-143 issued by the DNR.

5. On September 23, 1993, a duly authorized representative of the DNR issued a two part Notice of Violation ("NOV'') to JH&L, which was not mailed until October 4, 1993.

6. On November 8, 1993, JH & L filed a petition for administrative review of part 1 of the NOV.

7. Because the petition for review involves a surface coal mining enforcement action, the administrative law judge is the ultimate authority within the meaning of IC 4-21.5.

8. Part 1 of the NOV was written for the failure to achieve post-mining land use in violation of 310 IAC 12-68(a)(1) and condition of permit part IV, Section 5, Map 7. See Exhibit C.

9. 310 IAC 125-68(a)(1) requires all affected areas to be restored promptly after mining "to conditions that are capable of supporting the uses which they were capable of supporting before any mining; . . . ".

10. 310 IAC 12-3-4 requires a surface coal mining permittee to comply with the terms of the permit.

11. Part IV, Section J, Map 7 of the permit (Exhibit B) is the post-mining land use map relevant to the tract of land containing the area for which the NOV was written.

12. The area in question was mined in the late 1980s and is now in the process of being reclaimed in part as prime farmland.

13. The surface owner of the acreage where the alleged violation occurred testified that he purchased this 100 acre tract in 1981 and at that time, there was a gravel access road running through the prime farmland in order to provide access to other areas of the farm.

14. The gravel road was not noted on Map 7.

15. The property owner needed to have access to a cattle grazing area and thus replaced the gravel roadway in the spring of 1993.

16. Exhibits 1 and 2 are pre-mining aerial photographs of the site which clearly show the existence of the roadway prior to mining. It appears to be essentially the same length, width, and location as the pre-existing road.

17. Normally, 310 IAC 12-3-4 would require a post-mining land use amendment to allow the installation of a permanent gravel road access on prime farmland.

18. IC 13-4.1-1-2 sets forth the purpose of IC 13-4.1 (Surface Mining Act) which includes a provision to "Assure that the rights of surface landowners and other persons with a legal interest in the land . . . are fully protected."

19. IC 13-4.1-8-1 discusses surface coal mine performance standards and includes a statement that a permittee shall "restore the land affected to a condition capable of supporting the uses which it was capable of supporting prior to mining or higher and better uses... ."

20. The clear statutory purpose of IC 13-4.1 is to require the operator to return the land to the surface owner in as good or better shape than it was prior to mining.

21. JH & L mined the 100 acre tract and returned it as prime farmland.

22. The surface owner then replaced a 1,500 foot narrow gravel access road which had existed prior to mining.

23. The ultimate result of all of this is that the farmland

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was restored to exactly the same configuration as the pre-mined farmland.

24. 310 IAC 12 must be construed in conjunction with IC 13-4.1.

25. Under these specific and highly unusual facts, the permittee does not appear to have committed an act prohibited by IC 13-4.1. In fact, the actions appear to be consistent with IC 13-4.1, and therefore, cannot be construed to be a violation of 310 IAC 12.

26. Further, small areas of farmland devoted to access roads, out buildings, etc. are a natural and sometimes necessary part of farming and farmland reconstruction, and thus, do not in and of themselves defeat or change the approved post-mining land use on a large tract. See Green Construction v. DNR, 6 Caddnar 151, involving a swingset, two 10'x l2l out buildings, and a picnic table placed on approved cropland.

27. The DNR submitted a lengthy argument dealing with the issue of third party defense, ie. that it is not a defense to assert that the landowner, not the permittee, caused the violations.

28. The DNR's analysis is correct; unfortunately, it does not apply to this case. The cases cited all deal with construction projects undertaken by the surface owner which deviate greatly (building a dwelling, dumping shale on topsoil, and plowing an approved and necessary drainage ditch) from the facts of this case.

29. The DNR also argues that a finding that the roadway previously existed cannot be based on Exhibit 1 and 2 as the photographs were taken while mining was taking place, and thus no evidence was presented to show there was pre-mining gravel access lane.

30. This argument fails to take into account the sworn testimony of the surface owner who testified as to the existence of the gravel access road in 1981 when he purchased the property in the same location as the photos. Nothing in the record indicates any lack of credibility of the surface owner. In fact, neither of the DNR's witnesses predates 1989, and thus, the DNR presented no evidence as to pre-mining conditions.

31. The DNR also discusses undue burden. its analysis again is correct, but in light of prior findings, it is not material.

32. The NOV should be vacated.